Hastings Law Journal Volume 31 | Issue 1 Article 9 1-1979 The Extent of State Ownership of Submerged Lands in California William Arnone Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation William Arnone, The Extent of State Ownership of Submerged Lands in California, 31 Hastings L.J. 329 (1979). Available at: https://repository.uchastings.edu/hastings_law_journal/vol31/iss1/9 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. The Extent of State Ownership of Submerged Lands in California By WilliamnArnone* During 1970, the California Attorney General in conjunction with the California State Lands Commission initiated action to overturn 100 years of case law and statutory enactments governing title to sub- merged lands in California. Statutory construction generally had held that California's ownership of these lands extended only to the low- water mark. The Attorney General, however, asserted that state own- ership of the lands beneath California nontidal navigable waters ex- tended to the high-water mark.' The state made this claim despite section 830 of the California Civil Code, which states that the owner of land bordering on a navigable lake or stream takes to the "edge of the lake or stream, at low-water mark .... -2 Currently, the state asserts that section 830 is applicable only in construing conveyances between private parties. The potential impact of the state's claim is readily apparent in view of the many California landholdings which are bounded by navi- gable lakes and streams. This change in position, making the water- ward extent of title unclear, has created uncertainty and confusion among the landholders potentially affected. The result has been a number of civil actions filed by landowners seeking judicial clarifica- tion of the extent of their landholdings. 3 Several of these are now being heard at the appellate level.4 Until this issue is resolved conclusively, the property rights of all littoral and riparian- landowners in California * J.D., 1979, Hastings College of the Law; A.B., 1976, University of California at Davis. I. California v. Shasta Pipe & Supply Co., No. 37390 (Cal. Super. Ct., Butte County Mar. 25, 1971). 2. CAL. CIV. CODE § 830 (West 1954). 3. See Letter from Evelle J. Younger, California Attorney General, to William F. Northrop, Executive Officer, State Lands Commission (Mar. 8, 1977) (on file with The Has- tings Law Journal) [hereinafter cited as Letter from Evelle J. Younger]. 4. See, e.g., Lyon v. State, No. 13925 (Cal. Super. Ct., Lake County Nov. 19, 1976). 5. "Riparian" is defined as "[b]elonging or relating to the bank of a river, of or on the bank .... The term is sometimes used as relating to the shore of the sea or other tidal water, or of a lake or other considerable body of water not having the character of a water- course. But this is not accurate. The proper word to be employed in such connections is 'littoral.'" BLACK'S LAW DICTIONARY 1490 (4th ed. rev. 1968). [329] THE HASTINGS LAW JOURNAL [Vol. 31 will remain in doubt. To understand fully the significance of the state's new claim, the claim must be examined in light of the historical development of land ownership rights in California. Therefore, the first part of this Note examines the effect upon land ownership of California's admission to the Union and the state's subsequent adoption of the English common law. This overview points out the original source of California's title to submerged lands and provides a basis for comparing the new claim with established state law. The second part of this Note focuses on the high-water mark ver- sus low-water mark dispute by examining both federal and state law in this area, with an emphasis on the development of California law. This examination is necessary because some judicial decisions confuse the appropriate federal rules with the appropriate state rules. 6 California case law and statutory enactments both supporting and abrogating the use of a low-water mark dividing line then are examined in depth and compared to the policies of other states. Finally, the new claims being made by the Attorney General are analyzed, leading to the ultimate conclusion that the new position taken by the state as to the extent of its title is unsound and that the policy of state ownership to the low-water mark is so embedded in both case and statutory law that a mere change in administrative policy can- not diminish the existing rights of riparian and littoral landowners. Sources of California Title to Submerged Lands Following eighty years under the reign of Spain and Mexico, and two years as a United States territory, the State of California was ad- mitted into the Union on September 9, 1850, by an act of Congress which established, in part, that "the State of California shall be... admitted into the Union on an equal footing with the original States in all respects whatever."'7 Prior to California's admission, when Mexican policies controlled, ownership of the land beneath both navigable and innavigable waters was in the sovereign.8 Upon admission into the Union, however, the "equal footing" clause resulted in the adoption of the land ownership policies of the thirteen original states. Those states maintained absolute ownership of the land beneath navigable waters.9 The ownership of the beds of innavigable waters was private.' 0 There- fore, one of the major effects of California's admission on an equal 6. See note 52 & accompanying text infra. 7. An Act for the Admission of the State of California into the Union, 9 Stat. 452 (1850). 8. Lux v. Haggin, 69 Cal. 255, 10 P. 674 (1886). 9. Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 230 (1845). 10. Wright v. Seymour, 69 Cal. 122, 125, 10 P. 323, 324-25 (1886). September 1979] OWNERSHIP OF SUBMERGED LANDS footing was the resulting mass grant of ownership of the land beneath innavigable waters to riparians owning land bordering on or including such waters. The full impact of California's admission on an equal footing and the consequent differentiation between navigable and innavigable wa- ters was not clarified until April 13, 1850, when the first California leg- islature adopted the common law of England as the rule of decision for the state." The English common law developed a rule of navigability which was suitable to the topography of Great Britain, a country with few major inland waterways. The rule stated that only waters affected by the ebb and flow of the tides were navigable.' 2 While this rule may have been suitable in Great Britain, it was inadequate in the United States, with its many major freshwater inland waterways.13 Despite the disparity between the British topography and that of the United States, the federal government used the same test of navigability as England until 1851.14 In that year, however, the Supreme Court, recognizing the topographical differences between the two nations, discarded the Eng- lish test in The Propeller Genesee Chief v. Fitzhugh1 5 and adopted in- stead a navigable-in-fact test. This test has been modified further by the Supreme Court' 6 but still states essentially that if a waterway is navigable-in-fact then it is navigable-in-law.' 7 Because the common law of England, as adopted by the states of the Union, generally is interpreted to include the decisions of American courts up to the time 11. "The Common Law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of the State of California, shall be the rule of decision in all Courts of this State." Cal. Stat. 1850, ch. 95, at 219. 12. There has been considerable disagreement regarding the derivations and subtleties of this rule. One of the more succinct discussions of the rule is found in an unpublished paper by Lee Jordan, who divided the English rule into three parts: "1) in a navigable river, that is one subject to tidal influence, the public has a navigational servitude, but the state owns the bed of the river, 2) in a public river, one in which there is no tidal influence but which is navigable in fact, the riparian who takes a grant from the sovereign owns the bed, and the public has a navigational servitude; 3) in a private river, one which is non-navigable and non-tidal, there is no navigational servitude, and the riparian holds title to the bed." L. Jordan, Tests of Navigability: The Potomac River Experience (1973) (on file with The Has- tings Law Journal). 13. Outlining the evolution of federal and state tests of navigability is beyond the scope of this Note. For a detailed discussion, see Leighty, The Source and Scope of Public and PrivateRights in Navigable Waters, 5 LAND & WATER L. REv. 391 (1970). 14. See, e.g., The Thomas Jefferson, 23 U.S. (10 Wheat.) 428 (1825). 15. 53 U.S. (12 How.) 443, 457 (1851). 16. See The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870). 17. Not until the 1920s, however, did federal law clearly take precedence over state law for the purpose of determining which navigable waterway beds a state gained title to upon attaining statehood. See Johnson & Austin, RecreationalRights and Titles to Beds on West- ern Lakes and Streams, 7 NAT.